Confidentiality agreements restricting accusers' speech

Confidentiality agreements restricting accusers' speech turned private settlements into instruments that could silence people reporting harassment and conceal information about repeated allegations. The agreements offered some complainants money, privacy, and a way to avoid punishing litigation; at the same time, they could prevent other employees, regulators, and the public from learning what had happened. The book traces the clauses from the formal terms of settlements to their consequences in individual lives, showing how an agreement reached by a few parties could shape what many others were able to know.

Definition and legal setting

The agreements appeared in sexual-harassment settlements as confidentiality clauses or nondisclosure agreements. Their practical reach could extend well beyond a promise not to discuss a payment: the terms described in the book restricted disclosure of evidence, contact with other potential claimants, cooperation with journalists, and even what a complainant could say to professionals or government agencies. Some clauses also placed obligations on lawyers or required a complainant to assist in containing later disclosures.

The legal landscape made private settlement an attractive option for many complainants. Since the 1960s, federal law had treated workplace sexual harassment as a civil-rights violation, though harassment was not itself a criminal offense unless it involved rape or assault. The federal framework left out categories of workers, including freelancers and employees of workplaces with fewer than fifteen people. A complaint could face a federal filing deadline as short as 180 days, while damages were capped at $300,000. Those limits could make litigation a risky way to recover lost earnings or attract experienced counsel. Settlements, by contrast, could offer a more certain payment and a chance to move on.

What the clauses required

The agreements examined in reporting on Bill O'Reilly and Fox News illustrate how restrictions could accumulate. Women were required to hand over evidence, including recordings, diaries, emails, and backup files. They and, in one instance, their attorneys were barred from helping other women with similar claims. If a subpoena required testimony, a complainant had to notify O'Reilly's side, which could then try to prevent her from being called. One lawyer agreed to advise O'Reilly on sexual-harassment matters. Another woman agreed not to make disparaging statements about O'Reilly or Fox News, not to answer journalists who contacted her, and confirmed that she had not filed a complaint with government agencies responsible for enforcing harassment laws.

The reported payments in those cases were about $9 million and $3.25 million. The agreements made the money vulnerable to forfeiture if either woman violated the restrictions. The arrangement therefore joined compensation to continuing silence: the underlying allegations could recede from view, while the payment and the threat of losing it remained part of the bargain.

Why settlements became common

Complainants had practical reasons for accepting such terms. Some needed money, wanted privacy, saw no better route, or hoped to continue their lives without being branded a tattletale, liar, flirt, or habitual litigant. Lawyers also had financial incentives to settle. Many worked on contingency, receiving at least a third of an award if their client recovered money and potentially nothing if a case failed in court. Some attorneys challenged severe provisions; others accepted them or yielded in negotiations to secure larger awards for their clients.

The government’s role did not necessarily make the underlying information public. The Equal Employment Opportunity Commission often kept its settlements confidential and had limited enforcement authority. Its founding mandate favored settlement where possible, while legal restrictions prevented it from publicly identifying employers with the most harassment charges. A prospective employee therefore could not use the agency’s record to check an employer’s history. Information gathered through public resources could remain inaccessible to the people who might need it to judge future workplace risks.

The Weinstein settlement and its restrictions

The experience of Zelda Perkins and Rowena Chiu shows how confidentiality operated beyond a payment and a general promise not to speak. After they resigned from Miramax, they consulted lawyers expecting that criminal proceedings might follow. Instead, they were advised that settlement was the usual course and that the other side was unlikely to negotiate without a financial demand. Perkins pressed for provisions intended to change company practice, including therapy for Harvey Weinstein and a harassment policy with training and a group to evaluate complaints. After difficult negotiations, each woman received £125,000 under agreements with extraordinary restrictions.

When Perkins later showed Jodi Kantor fragments of her agreement, its terms revealed the reach of those restrictions. She could not discuss her time at Miramax; any medical professional she consulted had to sign a confidentiality agreement; and she could not be truthful with her accountant about the money. The paperwork recorded, in anonymized categories, people she had already told about her departure and what had happened. It also barred her from speaking to media, including outlets that might exist in the future, and required her to provide reasonable assistance in preventing or mitigating further disclosure.

The documents were dated October 23, 1998, only weeks after the Venice events. Perkins had not been allowed to keep a complete copy: she could consult the paperwork at her lawyer’s office, and the pages she later brought were excerpts assembled from what she had been permitted to retain. Perkins and Chiu had matching agreements whose confidentiality terms implied that they could not discuss the matter even with one another. The settlement thus restricted not only public speech but also access to a record of the terms governing their own silence.

Consequences and significance

For Perkins, the agreement shaped what she could explain after leaving a prominent film company. She found it uncomfortable to account for her abrupt departure to prospective employers, concluded that her film career was over, and went to Guatemala to train horses. The therapy provision she had sought also proved difficult to put into effect, and she eventually gave up. Her later decision to speak with a reporter and share portions of the agreement brought into view restrictions that had been designed to keep the underlying account private.

The wider consequence was an information imbalance. A settlement could compensate an individual while withholding from future employees, regulators, and the public the clues needed to recognize recurring allegations. The alleged harasser could move on to new workplaces or potential complainants while those bound by confidentiality were prevented from connecting experiences or helping others. Because settlements and their clauses were seldom examined in law-school classrooms or open court, the practice could remain obscure even to people who had long covered gender issues. Jodi Kantor and Megan Twohey’s investigation began to frame the agreements not as isolated contract language but as part of a system that could mute claims and enable the conduct it was meant to address.